Case: Occupy Delaware v. City of Wilmington

7027-VCG | Delaware state trial court

Filed Date: Nov. 9, 2011

Closed Date: 2012

Clearinghouse coding complete

Case Summary

On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, represented by public interest counsel, sought injunctive and declaratory relief. The complaint alleges that the City of Wilmington violated the constitutional rights of Occupy Delaware and its members by: (1) …

On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, represented by public interest counsel, sought injunctive and declaratory relief. The complaint alleges that the City of Wilmington violated the constitutional rights of Occupy Delaware and its members by: (1) denying it and its members the right to use Peter Spencer Plaza in Wilmington as a location for conducting protests unless they pay the City a $200 fee; (2) preventing it and its members from using the plaza at night; and, (3) preventing it and its members from placing tents and other temporary shelter on the plaza. Verified Compl. 1-2. Specifically, Occupy Delaware claimed that the Wilmington City Code provisions that the City relied on in imposing these requirements were by their terms not applicable to Peter Spencer. Occupy Delaware further claimed the provisions were unconstitutionally overbroad and vague in such a manner that they could not be applied to limit rights guaranteed by the First and Fourteenth Amendments of the United States Constitution as well as by Article I, § 5 of the Delaware Constitution.

On November 9, 2011--the same day this suit was filed--Occupy Delaware filed a motion for a temporary restraining order asking the court to prevent the City from depriving Occupy Delaware members from using the plaza. Occupy Delaware argued that if the City were to be allowed to remove Occupy Delaware members from the plaza, or allowed to otherwise prevent them from using the plaza, this would constitute immediate irreparable harm, as it would deprive Occupy members from fundamental constitutional rights--namely the right to assembly and freedom of speech. In contrast, Occupy Delaware argued that there was no alleged harm that would arise from the granting of the temporary injunctive relief.

On November 10, 2011, the Court of Chancery (Judge Sam Glasscock, III) granted the temporary restraining order for 24 hours and scheduled a hearing on the motion for the next day. Order Granting TRO. Later that day, however, the parties reached a settlement. Settlement Agreement. The terms of the agreement provided that Occupy Delaware and its members were allowed to: (1) use Peter Spencer Plaza without paying a fee for as long as they wished, (2) remain on the plaza seven days a week and around the clock, and (3) place tables, tents, signs and other items on the plaza. However, Occupy Delaware agreed to limit the location of where its members were allowed to place their tents, and not to block pedestrian traffic. Occupy Delaware further agreed that it would not establish another encampment in downtown Wilmington unless the plaza became insufficient to host its numbers. The City also reserved the right to "ask the Court to excuse it from complying with [the] agreement if, due to a physical change in the plaza that is in no way attributable to actions by the city or its agents, it becomes unreasonable for the occupation to continue at Peter Spencer Plaza." Id.

Occupy Delaware filed a supplemental complaint on May 7, 2012, alleging that the City was in violation of the settlement agreement. Verified Supplemental Compl. 1. Occupy Delaware alleged that that on April 23, 2012, the City issued a news release in which the mayor directed Occupy Delaware to discontinue its occupation of the plaza. Occupy Delaware argued that in the absence of a finding by the court that it was unreasonable for the occupation to continue "because of a physical change in the plaza that is in no way attributable to actions by the city or its agents," as provided by the settlement agreement, this was an anticipatory breach of the settlement agreement by the City. Occupy Delaware further argued that the November 2011 settlement agreement provided it with a contractual right to occupy the Plaza, in addition to its prior constitutional claims. See id. 4.

On July 16, 2012, the parties requested the court to approve a joint stipulation effectively dismissing the suit without prejudice. Stipulated Order. The stipulation provides that, given that the Plaza was to be renovated beginning September 17, 2012: (1) Occupy Delaware would remove its tents, signs, and other structures and items its members had placed by September 10, 2012, (2) Occupy Delaware would not add any tents, signs or items to the Plaza after July 16, 2012, and the City would not seek to have any removed prior to the termination of the encampment, (3) the November 10, 2011, settlement agreement would be terminated, and (4) each party would bear its own attorney's fees and costs. The court approved the stipulation the same day. Id.

Summary Authors

Greg in den Berken (6/23/2014)

People


Judge(s)

Glasscock, Sam (Delaware)

Attorney for Plaintiff

Morse, Richard H. (Delaware)

Attorney for Defendant

Cochran, Malcolm IV (Delaware)

Levy, Jaclyn C. (Delaware)

Tassone-DiNardo, Rosamaria (Delaware)

Judge(s)

Glasscock, Sam (Delaware)

Attorney for Plaintiff

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Documents in the Clearinghouse

Document

7027-VCG

Verified Complaint

Nov. 9, 2011

Nov. 9, 2011

Complaint

7027-VCG

Agreement Between Occupy Delaware and City of Wilmington

Nov. 10, 2011

Nov. 10, 2011

Settlement Agreement

7027-VCG

Order Granting Temporary Restraining Order [For 24 Hours until TRO Hearing]

Nov. 10, 2011

Nov. 10, 2011

Order/Opinion

7027-VCG

Verified Supplemental Complaint [With Exhibits Attached]

May 7, 2012

May 7, 2012

Complaint

7027-VCG

Stipulated Order [Overturning November Settlement]

July 16, 2012

July 16, 2012

Order/Opinion

Docket

Last updated Jan. 28, 2024, 3:35 p.m.

ECF Number Description Date Link Date / Link
52479333

Complaint

Nov. 9, 2011

Nov. 9, 2011

52479334

Verification to Complaint

Nov. 9, 2011

Nov. 9, 2011

52479335

Supplemental Information Sheet

Nov. 9, 2011

Nov. 9, 2011

52479336

Motion for Temporary Restraining Order

Nov. 9, 2011

Nov. 9, 2011

52479337

Proposed Order

Nov. 9, 2011

Nov. 9, 2011

52479339

Request for Judicial Action

Nov. 9, 2011

Nov. 9, 2011

52479340

Letter

Nov. 9, 2011

Nov. 9, 2011

52495500

Memorandum

Nov. 10, 2011

Nov. 10, 2011

52503851

Judicial Action Form

Nov. 10, 2011

Nov. 10, 2011

52505390

Other

Nov. 10, 2011

Nov. 10, 2011

52561687

Notice of Lodging

Nov. 14, 2011

Nov. 14, 2011

56776384

Motion

May 1, 2012

May 1, 2012

56782288

Letter

May 1, 2012

May 1, 2012

56853229

Letter

May 3, 2012

May 3, 2012

56883640

Judicial Action Form

May 4, 2012

May 4, 2012

56886417

Order

May 4, 2012

May 4, 2012

56916080

Amended Complaint

May 7, 2012

May 7, 2012

57006016

Answer and Counterclaim

May 9, 2012

May 9, 2012

57006750

Exhibits

May 9, 2012

May 9, 2012

57007280

Exhibits

May 9, 2012

May 9, 2012

57007647

Exhibits

May 9, 2012

May 9, 2012

57282889

Stipulation & (Proposed) Order

May 21, 2012

May 21, 2012

57336390

Scheduling Order

May 22, 2012

May 22, 2012

57382561

Answer to Counterclaim

May 23, 2012

May 23, 2012

57421550

Notice

May 24, 2012

May 24, 2012

57454823

Notice of Service of Request for Production

May 29, 2012

May 29, 2012

57634457

Stipulation & (Proposed) Order

June 5, 2012

June 5, 2012

57755068

Order

June 8, 2012

June 8, 2012

57785174

Notice of Service

June 11, 2012

June 11, 2012

57911447

Notice of Deposition

June 15, 2012

June 15, 2012

57911448

Notice of Deposition

June 15, 2012

June 15, 2012

57911449

Notice of Deposition

June 15, 2012

June 15, 2012

58064209

Notice of Deposition

June 21, 2012

June 21, 2012

58115626

Other

June 22, 2012

June 22, 2012

58117008

Other

June 25, 2012

June 25, 2012

58117013

Notice of Service

June 25, 2012

June 25, 2012

58119624

Other

June 25, 2012

June 25, 2012

58120322

Other

June 25, 2012

June 25, 2012

58120414

Notice of Service

June 25, 2012

June 25, 2012

58162870

Objection

June 26, 2012

June 26, 2012

58196166

Notice of Deposition

June 27, 2012

June 27, 2012

58198015

Notice of Deposition

June 27, 2012

June 27, 2012

58277679

Notice of Deposition

June 29, 2012

June 29, 2012

58349167

Notice of Deposition

July 3, 2012

July 3, 2012

58543584

Stipulation & (Proposed) Order

July 12, 2012

July 12, 2012

58543589

Letter

July 12, 2012

July 12, 2012

58623282

Order

July 16, 2012

July 16, 2012

Case Details

State / Territory: Delaware

Case Type(s):

Policing

Special Collection(s):

Occupy

Key Dates

Filing Date: Nov. 9, 2011

Closing Date: 2012

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The Occupy Delaware movement.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

City of Wilmington (Wilmington, New Castle), City

Case Details

Causes of Action:

42 U.S.C. § 1983

State law

Constitutional Clause(s):

Due Process

Freedom of speech/association

Available Documents:

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Mixed

Nature of Relief:

Injunction / Injunctive-like Settlement

Preliminary injunction / Temp. restraining order

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Content of Injunction:

Preliminary relief granted